Maddox v. Yates, et al.
ORDER DENYING 13 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/17/2013. (Jessen, A)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
JAMES A. YATES, et al.,
(ECF No. 13)
On September 13, 2013, plaintiff filed a motion seeking the appointment of counsel.
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to
represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court
for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in
certain exceptional circumstances the court may request the voluntary assistance of counsel
pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
“exceptional circumstances exist, the district court must evaluate both the likelihood of success
of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
Plaintiff asserts that he requires counsel because he is a participant in mental health
services and he needed counsel to help him understand the forms and papers in an appeal to the
Ninth Circuit. The court does not find the required exceptional circumstances in this case. Even
if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations
which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with
similar cases almost daily. Plaintiff’s receipt of mental health services and the appointment of
counsel in an appellate matter also do not establish exceptional circumstances in this action. At
this early stage in the proceedings, the court cannot make a determination that plaintiff is likely
to succeed on the merits, and based on a review of the record in this case, the court does not find
that plaintiff is cannot adequately articulate his claims. Id.
For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED without prejudice.
IT IS SO ORDERED.
September 17, 2013
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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